NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANTHONY SHELTON,

Plaintiff

- Appellant,

v. THE BOEING COMPANY, a Delaware corporation,
Defendant

- Appellee. No. 15

- 35070
D.C. No. 2:14

- cv - 00234

- TSZ
MEMORANDUM *

Appeal from the United States District Court for the Western District of Washington Thomas S. Zilly, District Judge, Presiding Argued and Submitted July 14, 2017 Seattle, Washington Before: FARRIS, MURPHY, ** and NGUYEN, Circuit Judges. Anthony Shelton appeals the district court’s denial of his motion for partial summary judgment and grant of summary judgment in favor of Boeing on his Washington State Family Leave Act (“WFLA”) interference claim. Boeing

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3.

** The Honorable Michael R. Murphy, United States Circuit Judge for the U.S. Court of Appeals for the Tenth Circuit, sitting by designation. 

# FILED

AUG 1 2017
MOLLY C. DWYER, CLER K U.S. COURT OF APPEAL S2

terminated Shelton under its progr essive discipline policy after he received three corrective action memos (“CAMs”) in the same infraction category. Boeing
administered the first two CAMs for Shelton’s refusal to comply with his manager’s instructions to notify her before any absence ; som e of the se absences were covered by the federal Family and Medical Leave Act (“FMLA”)

. We have jurisdiction under 28 U.S.C. § 1291 . W e review the district court’s grant of summary judgment de novo. Szajer v. City of Los Angeles , 632 F.3d 607, 610 (9th Cir. 2011). We aff

irm. The WFLA is patterned on and constr ued in accordance with the FMLA

. Wash. Rev. Code § 49.78.410. The FMLA entitles employees to a certain amount of leave for protected medical reasons. Sanders v. City of Newport , 657 F.3d 772, 777 (9th Cir. 2011). Employers may not “i nterfere with, restrain, or deny” the exercise of this right . 29 U.S.C. § 2615(a)(1); Wash. Rev. Code § 49.78.300(a). To demonstrate interference, the plaintiff must show by a preponderance of the
evidence that h is taking of FMLA leave was a “negative factor” in his employer’s
decision to deny him FMLA leave or take an adverse employment action against
him

. See Bachelder v. Am. W. Airlines, Inc. , 259 F.3d 1112, 1125 (9th Cir. 2001).
A n employee must comply with the employer ’ s usual and customary policies for requesting leave, absent unusual circumstances. 29 C.F.R. § 825.303(c).3

In this case, t he district court did not err in granting summar y judgment for Boeing because n o reasonable jury could find that Shelt on’s FMLA leave was a negative factor in his termination. Bo eing submitted evidence showing that it
administered the first two CAMs to Shelton because he refused to comply with his manager’s instructions to contact her directly before taking any absence, not
because he exercised his right to FMLA leave

. And, Shelton provided no
additional evidence that co uld possibly establish that the nature of his F MLA leave was a negative factor, or even a factor at all, in Boeing’s decision to discipline him

. Cf. Throneberry v. McGehee Desha Cty. Hosp. , 403 F.3d 972, 980 (8th Cir. 2005) ( an employer may discipline an employee for misconduct associated with FMLA
leave if it would have imposed the same discipline if the employee had taken a different form of leave). Furthermore, Shelton fails to establish that he complied with Boeing’s usual and customary policy for requesting leave

. T he Shared Accountability section of
the Leave s of Absence Policy Handboo k (“LOA Handbook”) explains that “employees needing to take any absence shoul d always speak to their manager”; the appendix of the LOA H andbook says managers must be contacte d in the event of FMLA absences; and the Puget Sound Attendance Guidelines explain that
“unscheduled absences must be reported to the employee ’s organization on or before the day that the absence occurs.” (E mphasis added ). T o the extent that the4

written policies may be inconsistent with the LOA Handbook’s FMLA policies in Section 7, there is no question that Shelton knew he needed to report hi s absences to his manager. H e was reminded on multiple occasions

. Nothing in the FMLA prohibits an employer from disciplining an employee for noncompliance with the company’s usual and customary attendance policies

. See Bones v. Honeywell Int’l,
Inc. , 366 F.3d 869, 878 (10th Cir. 2004). Additionally , no unusual circumstances justified Shelton’s noncompliance

. H e failed to proffer evidence that anything outside his contro l prevented him from following the policy , or that he was reasonable in disrega rding his manager’s clear and repeated instructions to notify her before any absence. See 29 C.F.R. § 825.302(d)

. Finally , there is no merit to Shelton’s argument that 29 C.F.R. § 825.304(e)
mandates that an employer that grants FMLA leave automatically waives its ability to discipline an employee for refusal to comply with attendance policies. Shelton
cite s no authority to suppo rt this interpretation.
AFFIRMED.